United States District Court, E.D. Missouri, Eastern Division
MONICA L. AVETTA, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of an adverse ruling by
the Social Security Administration. The defendant
acknowledges that the Administrative Law Judge (ALJ) failed
to consider relevant medical records. [Doc. # 20 at 12]. The
Court will remand this matter for further proceedings.
February 15, 2013, plaintiff Monica L. Avetta filed
applications for a period of disability, disability insurance
benefits, Title II, 42 U.S.C. §§ 401 et
seq., and for supplemental security income, Title XVI,
42 U.S.C. §§ 1381 et seq., with an alleged
onset date of March 25, 2012. (Tr. 156-63, 164-71). After
plaintiff's applications were denied on initial
consideration (Tr. 119-23), she requested a hearing from an
ALJ, which was held on August 14, 2014. (Tr. 124-25, 60-96).
On February 17, 2015, the ALJ issued a decision denying
plaintiff's applications. (Tr. 47-55). The Appeals
Council denied plaintiff's request for review on April 5,
2016. (Tr. 1-5). Accordingly, the ALJ's decision stands
as the Commissioner's final decision.
documents completed in February 2013, plaintiff claimed
disability due to unspecified back problems, neck problems,
right shoulder problems, urinary problems, Type II diabetes,
high blood pressure, and leg problems. She was prescribed
medications for the treatment of high blood pressure,
diabetes, and overactive bladder, and took Tylenol or
ibuprofen for pain. As a child, plaintiff attended special
education classes and completed high school. She had worked
as a school custodian, a general laborer for temporary
agencies, a nursing home housekeeper and launderer, and a
hotel room attendant. (Tr. 197-209). She and her husband, who
is disabled, lived in a mobile home. Plaintiff cooked meals
and washed dishes and, with her husband's help, completed
laundry and vacuuming. (Tr. 225-39). She believed she could
walk a distance of one mile before her legs gave out. She
used a cane and wore glasses. In July 2013, plaintiff
reported that her condition had deteriorated: she experienced
severe back pain and had problems with both legs and her left
arm and shoulder. She fell on June 9, 2013, when her legs
gave out. In addition, she was depressed and tired of being
in pain. She was no longer able to cook or clean. (Tr.
242-46), At the August 2014 hearing, plaintiff testified
that, due to her back pain, she was unable to sit or stand
for longer than 30 minutes or walk for longer than five
minutes. She had started using a cane because she fell every
month or two. She had difficulty lifting her right arm, due
to surgery in 2004 to repair her right rotator cuff. She took
Tramadol, Flexeril, and Naproxen for pain, and had a brief
course of treatment with Percocet while she was waiting for
kidney stones to pass. She had been prescribed prednisone but
it caused her blood sugars to rise to the point that she was
hospitalized for seven days in June 2014. She started taking
insulin in October 2013. Her blood sugars remained
uncontrolled despite efforts to adjust her medication and
insulin. (Tr. 73-75). Plaintiff disputed a report that she
had been consuming even modest amounts of alcohol and stated
that she had quit smoking when she was in the hospital.
testified that she showered every day, but acknowledged that
she had been told that she had a bad odor. (Tr. 82). She also
suffered from urinary tract and kidney infections, which
caused pain, urgency, and twice-daily incontinence. When she
worked as a cleaner in a nursing home, she was frequently
unable to get to a rest room in time to prevent an accident.
(Tr. 88-90). She carried extra clothes with her at all times
and had had to change her clothes before the hearing began.
(Tr. 87-88, 91). She had been in special education classes
for a reading disability and for being a “slow
learner.” She sometimes had difficulty understanding
the information given to her by medical providers. (Tr. 79).
When she worked temporary jobs on assembly lines, she was
unable to keep up with the pace. (Tr. 91).
February 17, 2015, the ALJ determined that plaintiff was not
disabled. The ALJ found that plaintiff had the severe
impairments of mild osteoarthritis, degenerative disc
disease, and obesity; that she had the residual functional
capacity to perform the full range of medium work; and that
her impairments would not preclude her from performing work
that exists in significant numbers in the national economy.
Court must affirm the Commissioner's decision “if
the decision is not based on legal error and if there is
substantial evidence in the record as a whole to support the
conclusion that the claimant was not disabled.”
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997).
“Substantial evidence is less than a preponderance, but
enough so that a reasonable mind might find it adequate to
support the conclusion.” Estes v. Barnhart,
275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after
reviewing the record, the Court finds it possible to draw two
inconsistent positions from the evidence and one of those
positions represents the Commissioner's findings, the
Court must affirm the decision of the Commissioner.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011)
(quotations and citation omitted).
entitled to disability benefits, a claimant must prove she is
unable to perform any substantial gainful activity due to a
medically determinable physical or mental impairment that
would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42
U.S.C. § 423(a)(1)(D), (d)(1)(A); Pate-Fires v.
Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The
Commissioner has established a five-step process for
determining whether a person is disabled. See 20
C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d
520, 523 (8th Cir. 2009). “Each step in the disability
determination entails a separate analysis and legal
standard.” Lacroix v. Barnhart, 465 F.3d 881,
888 n.3 (8th Cir. 2006).
one through three require the claimant to prove (1) she is
not currently engaged in substantial gainful activity, (2)
she suffers from a severe impairment, and (3) her disability
meets or equals a listed impairment. Pate-Fires, 564
F.3d at 942. If the claimant does not suffer from a listed
impairment or its equivalent, the Commissioner's analysis
proceeds to steps four and five. Id.
to step four, the ALJ must assess the claimant's residual
functioning capacity ('RFC'), which is the most a
claimant can do despite her limitations.''
Moore, 572 F.3d at 523 (citing 20 C.F.R.
' 404.1545(a)(1)). “RFC is an administrative
assessment of the extent to which an individual's
medically determinable impairment(s), including any related
symptoms, such as pain, may cause physical or mental
limitations or restrictions that may affect his or her
capacity to do work-related physical and mental
activities.” Social Security Ruling (SSR) 96-8p, 1996
WL 374184, *2. “[A] claimant's RFC [is] based on
all relevant evidence, including the medical records,
observations by treating physicians and others, and an
individual's own description of his limitations.”
Moore, 572 F.3d at 523 (quotation and citation
determining a claimant's RFC, the ALJ must evaluate the
claimant's credibility. Wagner v. Astrue, 499
F.3d 842, 851 (8th Cir. 2007); Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This
evaluation requires that the ALJ consider “(1) the
claimant's daily activities; (2) the duration, intensity,
and frequency of the pain; (3) the precipitating and
aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6)
the claimant's work history; and (7) the absence of
objective medical evidence to support the claimant's
complaints.” Buckner v. Astrue, 646 F.3d 549,
558 (8th Cir. 2011) (quotation and citation omitted).
“Although ‘an ALJ may not discount a
claimant's allegations of disabling pain solely because
the objective medical evidence does not fully support them,
' the ALJ may find that these allegations are not
credible ‘if there are inconsistencies in the evidence
as a whole.'” Id. (quoting Goff v.
Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express
credibility determinations and set forth the inconsistencies
in the record which caused the ALJ to reject the
claimant's complaints. Singh v. Apfel, 222 F.3d
448, 452 (8th Cir. 2000); Beckley v. Apfel, 152 F.3d
1056, 1059 (8th Cir. 1998).
four, the ALJ determines whether a claimant can return to her
past relevant work, “review[ing] [the claimant's]
[RFC] and the physical and mental demands of the work
[claimant has] done in the past.” 20 C.F.R. §
404.1520(e). The burden at step four remains with the
claimant to prove her RFC and establish that she cannot
return to her past relevant work. Moore, 572 F.3d at
523; accord ...